Religion & Ethics NewsWeekly . INTERVIEW . Judge Michael McConnell . July 1, 2005

Read an edited version of correspondent Tim O'Brien's interview with federal judge Michael McConnell of the 10th U.S. Circuit Court of Appeals, conducted on June 17, 2005, two weeks prior to Justice Sandra Day O'Connor's announcement that she would be leaving the Supreme Court:

O'BRIEN: From the earliest times, from Plymouth Rock to Jamestown, there was never much question religion would play a large part in American life, was there?

JUDGE McCONNELL: No. From the beginning, Americans have been more intensely engaged in religious matters than almost any other nation on earth.

O'BRIEN: And yet, they came here, many of them, to escape religious persecution.

Photo of MICHAEL MCCONNELL

JUDGE McCONNELL: Exactly. Of course, that didn't necessarily mean that they were willing to give religious freedom to others. They came here to worship and to set up commonwealths to be able to practice their religion as they thought it should be done. That didn't necessary mean that they were welcoming to others.

O'BRIEN: And, in fact, they were hostile to many other religions, weren't they?

JUDGE McCONNELL: Absolutely. That's not true of all of the early colonies, but the Puritan colonies in New England and the Anglican colonies of the South all had proscriptions against people coming in and practicing other faiths. Now, Rhode Island, Pennsylvania, Delaware, to some extent New Jersey, and some other places were much more open to people of all faiths to come.

O'BRIEN: How bad did it get?

JUDGE McCONNELL: Well, at times it got quite bad. Four Quakers were hanged in Massachusetts in the 17th century, numerous people thought to be heretics were banished or horsewhipped; in Virginia, right up until the eve of the revolution, ministers who weren't licensed by the state were imprisoned; some 30 Baptist ministers were in jail in Virginia between the late 1750s and the American Revolution.

O'BRIEN: There are those who would say that kind of intolerance supports the strict separation of church and state that some of the justices have settled on at the Supreme Court.

JUDGE McCONNELL: Well, it certainly is true that by the end of the revolutionary period there was remarkable consensus in the American states in favor of toleration and, indeed, of free exercise of religion, which goes even beyond toleration. That did not necessarily mean that there should be a strict separation between church and state. At the time, although there was widespread belief that people should be able to practice religion as they chose, the precise degree of separation between government and religion was a contested matter, and different states went in different directions.

O'BRIEN: It seems the centers of the warring camps were New England, principally Massachusetts, which wanted active government support of religion, and Virginia, which wanted just the opposite. Is that correct?

JUDGE McCONNELL: They certainly went that way, but both of those states had major debates along the way. In Virginia, in 1784, Patrick Henry led a drive for what we would call "multiple establishment of religion," somewhat similar to what some of the countries in Western Europe have today, where people were free to practice their own religion. And, indeed, they were free to contribute to whatever religious faith within certain boundaries they wished, but they had to support some kind of religion. This is a "multiple establishment" in the sense that the government required people to support a religion. A similar system was actually instituted in Massachusetts. It was voted down in Virginia, but only after two years of rather intense debate in which many prominent, well-known patriots whose names are familiar to many of us, including George Washington, the great Chief Justice John Marshall, as well as Patrick Henry, Richard Henry Lee, and others supported this idea of a multiple establishment. A similar system was put into effect in three of the states in New England, although, again, after vociferous debate and some opposition. A couple of other places authorized a system like that. Georgia and Maryland both voted to have such a system but never put it in actual operation.

O'BRIEN: Where were Jefferson and Madison in that debate?

JUDGE McCONNELL: Jefferson was off in France; he had earlier drafted a bill, which was not enacted in the late 1770s, which would have completely disestablished religion in Virginia, but when the debate was going in 1784 through 1786, he was away, so James Madison championed the opposition to Patrick Henry's proposal and ultimately was successful. And then in 1786, the Virginia House of Burgesses enacted Jefferson's bill, which was called "A Bill for Establishing Religious Freedom," and that ended establishment of religion in Virginia.

O'BRIEN: The words "separation of church and state," of course, do not appear anywhere in the Constitution, but wouldn't any fair reading of the establishment clause suggest there needs to be at least some separation?

JUDGE McCONNELL: I don't think there's any doubt about that. It is true that the term "separation" does not appear in the First Amendment, nor does it appear in any of the state constitutions around the time; nor is the word used in any of the debates over the First Amendment. The word comes into more prominence in the 19th century, beginning with a letter written by Jefferson in 1802; but some degree of separation was certainly believed in. In fact, even supporters of established churches believed that there should be some forms of separation between church and state. The Puritan establishments of New England, for example, had what we would certainly consider an establishment of religion, but, nonetheless, the institution of the church was not the same as the institution of the state; they believed that there were two separate forms of authority, temporal and spiritual, that should not be completely confused. Now, at the other end, no one really believed that government and religion could be completely and absolutely separated in the sense of having nothing to do with one another. Obviously, churches and other religious institutions are going to participate in public life; they're going to receive police and fire protection; they're going to use the roads and the mails; they're going to be subject to fire codes and other laws. So exactly what degree of separation there [was] going to be between church and state was a matter of considerable disagreement.

O'BRIEN: Jefferson's use of the word "wall" in that letter has caused a lot of problems, hasn't it?

JUDGE McCONNELL: Well, it's a metaphor that has come in for a lot of criticism, because it implies a much greater degree of separation than is even possible. And even the great supporters of disestablishment at the time tended to shy away from Jefferson's language of a wall. It's interesting -- he wrote this letter to an association of Baptist churches in the state of Connecticut in 1802. At the time, the Connecticut Baptists were making one of their many attempts to repeal the established church that then existed in Connecticut, and they wrote President Jefferson in hopes of receiving a letter they could then use to support their cause of disestablishment in Connecticut. Interestingly, when they received this letter, which is now so famous, they didn't even use it in their campaign; they didn't enter it into their minutes. They apparently did not consider it either useful or important in their matters. The Jefferson letter was published in a few newspapers but received no great prominence at the time. It wasn't until 1878 that the Supreme Court, in a case about the free exercise clause, not the establishment clause, first mentioned Jefferson's letter, and then it really came into prominence only after World War II when the United States Supreme Court began to refer to the letter as a guide to the First Amendment.

O'BRIEN: What was that case all about?

JUDGE McCONNELL: That was a case -- EVERSON V. BOARD OF EDUCATION -- which was about whether it was constitutional for the state of New Jersey to provide free bus transportation to children going to school, not just in public schools but also in private religious schools.

O'BRIEN: And how did the court rule in that case?

JUDGE McCONNELL: The court ruled that it was constitutional in a 5-4 decision, but at the same time embracing an interpretation of the First Amendment which is still quite contested today and relies very heavily on this idea of separation between church and state.

O'BRIEN: Is that the case where the Supreme Court for the first time held that the establishment clause is applicable to the states, just as it is to the federal government?

JUDGE McCONNELL: Yes, that is the same case, although, of course, Jefferson's letter had nothing to do with that aspect of the case.

O'BRIEN: Was Jefferson a religious person?

JUDGE McCONNELL: Jefferson was extremely interested in religion, and he went through several different phases in his life and, by the way, this is something which Jefferson experts are not entirely in agreement about, because Jefferson's a very complicated figure and at different times he says things which are quite contradictory. But among the prominent American founders, Jefferson would have been at the more secular or deistical side of the spectrum. He certainly was not an orthodox Christian or Protestant, but he also devoted a great deal of attention, particularly after about 1800, to study[ing] Scripture and to writing quite a lot about religion. While he was president, he actually went through the four Gospels and prepared a compendium of the philosophy of Jesus, which he later expanded into what is published as "Jefferson's Bible," which is an attempt to present a version of the Christian religion which is stripped of claims of divinity and of miracles. Now, you'll have to admit that is a bit of an interesting thing for a president to do. At the same time, Jefferson, after about 1802 and for the last six years of his presidency, attended church virtually every week at the church services which were conducted by the chaplains of the Congress in the hall of the House of Representatives, which is also an interesting thing for him to have done. And he allowed various denominations to meet and have worship services in the federal buildings, the treasury building, and other buildings in Washington, DC during his presidency.

It's also interesting that he and Ben Franklin, another one of the more secular, deistical of our founders, proposed a seal for the United States, an official seal for the United States, which was not adopted but which featured a picture of the Israelites being chased by Pharaoh and crossing the Red Sea and with the motto around the edge of the seal that says, "Resistance to Tyranny Is Obedience to God." So Jefferson has a very interestingly mixed record on the question of religion.

O'BRIEN: Where was Madison on this? He was the drafter of the First Amendment.

JUDGE McCONNELL: Madison was, more so than any other person, the drafter. Madison presented a proposal to the first Congress which was quite radically altered and amended during the course of debate, but all through that debate he was the spearhead, the person who kept Congress's feet to the fire and insisted that it was really important to have a First Amendment.

O'BRIEN: It seems that all of the framers of the Constitution, the Founders of the Republic, believed in religion to one extent or another, believed it had a practical usefulness in everyday life, but there was great division over the role of government. What are we to make of that? In trying to figure out what the framers thought, do they cancel out each other? Is there anything that you can hang your hat on?

JUDGE McCONNELL: Certainly there are areas of consensus, and then there are areas of difference. Areas of consensus included the view that all people had an equal right to practice religion in accordance with their conscience, and that extended even to religious views at the time that were completely out of the mainstream - references, for example, to Jews, Turks, and infidels having rights of religious freedom. So the right to practice one's religion in accordance with conscience was very widely believed. The harder questions had to do with the degree to which government might provide support to religion, and as to that, the states were quite divided. Now they were able to come together on the First Amendment, which kept the federal government from establishing religion, because whatever your view might have been about religion and government back in your own state, no one was interested in having the new, rather scary national government get into the business of deciding what kind of religion to support or how to do that.

O'BRIEN: I gather it's your sense that the big concern was establishing a state church, or favoring one religion over another; that would be prohibited.

JUDGE McCONNELL: Yes, that's right. There was a coalition of opposition to a classic establishment of religion that came from two quite different directions. The principal opponents of established religion -- those who urged disestablishment of religion -- were actually the most fervent evangelical denominations at the time and led especially by the Baptists. Their principal concern was that establishment of religion led to government control over religion and would have the effect of dampening enthusiasm and actually discouraging religion. Madison seemed to take this view. When he was arguing in favor of disestablishment in the Virginia House of Burgesses in 1785, we have notes from one of his speeches in which he said something to the effect that he did not disagree that religion was good for government, but that he thought that establishment was bad for religion, and that was a position that is much more similar to that which was taken by the Baptists and other evangelical dissenters who strongly supported disestablishment. Now there was another element -- smaller in numbers, but maybe especially important in terms of education and social prominence -- who were the more Enlightenment-affected, somewhat more deistical, somewhat more secular elements, of which Jefferson and Franklin would be good examples, and they in their writings, especially their private writings, are somewhat more likely to express the idea that religion represents a kind of superstition or prejudice that they would like to have rooted out of public influence and replaced by more rational religion. They didn't usually think in terms of eliminating religion altogether, but in terms of a more rational version of religion.

O'BRIEN: Is there anything you see in their writings that would suggest that they would oppose a general support for religion, government support for religion generally? Would they allow that?

JUDGE McCONNELL: The biggest debate in the 1780s in the various states was over whether the state should provide support for religion -- not one religion, but multiple sets of religions, religion at the choice of the individual taxpayer. In four states in New England, counting Vermont, there was actually a system in which taxpayers would be able to support a "Protestant minister of piety and morality," is the way the statute puts it, of their choice, thus allowing a multiple establishment, that is, support for a number of different religions. Vermont went even further than that and was generally neutral among virtually every religious denomination. Schemes of that sort were proposed and almost adopted in a number of other states, including Virginia, Maryland, Georgia, almost went in New Jersey as well. So this idea of general government support for religion was very much debated, and that was essentially the alternative. By the time of the adoption of the First Amendment, there was no state in the Union that even considered having an establishment of one religion, which had been the classic form of establishment of religion. But the debates actually don't tell us very much about something that we're more concerned about today, which is whether and under what terms churches and other religious organizations can receive benefits not in their capacity as churches, but rather as providers of social welfare and educational services. That was not what was being debated back in the 18th century. There were no public schools; there was very little aid to education at the time; the social welfare functions were rudimentary at best, so these issues tended not to arise. It wasn't until the 1830s that the question of the constitutionality or legitimacy of state support for religious education became an issue.

O'BRIEN: What about church sponsorship of social programs and getting tax benefits for that? Is there any way of reading what the framers would have thought about that?

JUDGE McCONNELL: We can certainly make inferences, but I want to emphasize "inferences," because those were not the issues they actually had before them. We can make judgments about what their principles were or why they took positions that they did and then make educated guesses about that, but that was not the question at the time.

O'BRIEN: One of the big questions that seems to pervade the church-state debate today is not whether government can favor one religion over another, for surely it cannot, but whether it may favor religion generally over nonreligion. Is there any way to read what the framers thought about that?

JUDGE McCONNELL: It is pretty clear that many of the advocates of disestablishment, who may not have prevailed in all the states as of the First Amendment but did by several generations later -- many of the advocates of disestablishment believed that it was not possible to give aid to religions even on a nondiscriminatory basis, but in their capacity as churches or in their capacity as religions you could not aid them without the government being able to exercise control over their operations, and so most of the advocates of disestablishment at the time of the founding opposed measures in which, for example, ministers would receive a salary for their services as ministers. Now this does not mean churches could not receive benefits if they performed other services, but it did mean that in their capacity as religious institutions, that they would not receive benefits as such.

It's also interesting to note, if you focus on the debates over the actual framing of the First Amendment in the first Congress, there are a number of proposals that were put forward and voted down. One of the proposals that was put forward and briefly adopted in the Senate and then ultimately voted down was one that would have confined the establishment clause to preferences or privileges for one religion to the exclusion of others.

It's clear that equal treatment of denominations was one of the major concerns of the advocates of religious freedom at the time. Almost every one of the state constitutional provisions having to do with religion makes some reference with respect to equality of rights; it was very common for religious minorities to phrase their demands in terms of equal footing, but at the same time, to say that equality among religions is all the establishment clause was intended to mean would be a stretch. During the debates in the United States Senate over what ultimately became the establishment clause, there were a number of proposals made and voted down; one of those would have confined the establishment clause to establishment of one religious sect or society in preference to others. That provision was briefly adopted, so we know it had a lot of support, but it was ultimately voted down, suggesting the framers of the First Amendment did not understand the establishment prohibition as being confined to discrimination among religious denominations.

O'BRIEN: When church services were being held in the hall of the House of Representatives, where was James Madison?

JUDGE McCONNELL: There are actually eyewitness accounts of James Madison attending some of the services, and he was on the committee that chose the first chaplain of the United States House of Representatives. Later in life, after he retired from public life, he wrote a long essay which is called the "Detached Memorandum," which was not published, in which he expressed regret for some of the positions he had taken earlier in life, and that was one of them.

O'BRIEN: Public statements and private conduct don't always match.

JUDGE McCONNELL: I think most people would agree that the private views of participants in the debates are of limited significance, and especially when they changed later in life. What really seems to matter for constitutional interpretation is the public positions that are taken and debated and presumably adopted by the people.

O'BRIEN: You have written that the Supreme Court has gotten it wrong. Want to comment about that?

JUDGE McCONNELL: One of my criticisms of the modern Supreme Court has been that they have tended to look at the two issues of free exercise of religion and establishment of religion in isolation and, indeed, have treated the two clauses of the First Amendment as being in tension with each other, as if the free exercise clause is a clause favorable to religion and the establishment clause is a clause sort of against religion, and that it's their job to balance those in some way. I think that is the source of many of the interpretive difficulties in the court. Certainly the framers of the First Amendment did not consider these provisions to be antithetical or in tension. They're in the very same sentence. They were supported by the same people. The argument for free exercise and the arguments against establishment of religion tended to be grounded in many of the same arguments. Both clauses were designed to guarantee that the government would not be able to control the religious life of the people, either by having laws prohibiting unfavored religious practice or by the government setting up and running and controlling and supporting its own favored religious practices; those ideas are not in conflict with each other, and I think that many of the modern conundrums have come from the Supreme Court's tendency, ... at least in a lot of cases, not to see the two clauses as complementary.

I think one of the most important things for people to realize is the degree to which the movement for free exercise and disestablishment of religion was spearheaded by intensely religious groups, especially Baptists, but other groups that came out of the Great Awakening and were anything but caught up in a kind of secularization or Enlightenment movement; they were the shock troops of the First Amendment. And when you realize that, I think it helps put a perspective on the whole movement for religious freedom in America, that it was a movement, an affirmative and positive movement based upon the view that religion is an important matter and religious conscience is something that is precious and should be protected, rather than a skeptical view that religion is dangerous and needs to be kept in its place.